Thomas A. Pavlinic
The Conte Building
116 Defense Highway, Suite 501
Annapolis, MD 21401-7037
(410) 974-6003
(410) 974-6019 (Facsimile)

Attorney for Amicus Curiae

NAMES OF ALL PARTIES

David M. Weaver
Cindy White
Joann N. Wilkins
Barford & Ryburn, L.L.P., Attorneys for Petitioner
Dallas, Texas

Renee Vesecky, Respondent/Plaintiff
Dallas, Texas

Mike Patterson, Attorney for Respondent
Bailey, Negem & Patterson, L.L.P.
Tyler, Texas

IDENTIFICATION OF AMICUS CURIAE

Thomas A. Pavlinic, Attorney for Amicus Curiae
Annapolis, Maryland

TABLE OF CONTENTS

Index of Authorities

Statement of Interest of Amicus Curiae

Statement of Jurisdiction

Points of Error

Point of Error No. 1: The Court of Appeals erred in holding the discovery rule applied in this case. (Op. p. 4).

• General Statement
• Brief of the Argument
• Point of Error No. 1 (Restated)

Conclusion

Prayer for Relief

Acknowledgement of Assistance

Certificate of Service

Appendix

• I. False Memory Syndrome Foundation Scientific and Professional Advisory Board Membership List.
• II. Text of "The Reality of Repressed Memories" by Elizabeth F. Loftus, Ph.D., American Psychologist, May, 1993.
• III. Text of "Recovered Memories": Recent Events and Review of Evidence, an Interview with Harrison G. Pope, Jr., M.D., Currents in Affective Illness, July, 1994.
• IV. Bibliography of Professional Findings of Interest to the Legal Community.

Notes

INDEX OF AUTHORITIES

Daubert v. Merrell Dow Pharmaceutical. Inc., 113 S.Ct. 2786 (1993)
Fernandi v. Strully, 173 A.2d 277 (1961)
Frye v. United States, 293 F 1013 (1923)
Gaddis v. Smith, 417 S.W. 2d 577 (Tex. 1972)
L.C. v. A.D., No. 05-92-02867-CV (Tex. App. (1994))
McCollum v. D'Arcy, 638 A.2d 797 (1994)
Moreno v. Sterling Drug. Inc., 787 S.W. 2d 348, 351 (Tex. 1990)
Precision Sheet Metal Mfg. Co. v. Yates 794 S.W. 2d 545 (Tex. App. - Dallas, 1978, writ denied)
Robinson v. Weaver, 550 S.W. 2d 18 (Tex. 1977)
Tyson v. Tyson, 727 P.2d 226 (Wash. 1986)
Weaver v. Witt, 561 S.W. 2d 792 (Tex. 1977)
Willis v. Maverick, 760 S.W. 2d 642 (Tex 1988)

STATUTES

Rule 702 - Federal Rules of Evidence
12 Oklahoma Statute at 95
Texas Civil Practice and Remedies Code #16.003(a)
Wash. Rev. Code Ann. #4.16.340
TEXTS, TREATISES & MEDICAL JOURNALS

American Medical Association (1985), Council Report, "Scientific status of repressing recollection by the use of hypnosis," JAMA, April 5, 1985, Vol. 253

American Medical Association,Council on Scientific Affairs, "Mental health consequences of interpersonal and family violence: Implications for practitioners." CSA Report B (A-93) (1993)

American Medical Association: Report of the Council on Scientific Affairs, C.S.A. Report 5-A-94 (1994)

American Psychiatric Association, Board of Trustees (1993), "Statement on memories of sexual abuse," which was approved by the Board of Trustees of the American Psychiatric Association on December 12, 1993

American Psychological Association, Counsel of Representatives, Working Group on Investigation of Memories of Child Abuse (November 11, 1994), Interim Report

The Australian Psychological Society Limited, Board of Directors (1994), issued "Guidelines relating to the reporting of recovered memories."

Bass, E. and Davis, L. (1988), The Courage to Heal: Women Healing from Sexual Abuse, New York: Harper and Row

Blume, E. (1990), Secret Survivors: Uncovering Incest and Its After-Effects In Women. New York: John Wiley & Sons

Briere, J. and Conte, J. (1993), "Self-reported amnesia for abuse in adults molested as children," Journal of Traumatic Stress, 6(1), p. 21-31

Campbell, T.W. (1994) ,"Repressed memories and statutes of limitaions: Examining the data and weighing the consequences," American Journal of Forensic Psychiatry, 16:2, p. 25-51

Campbell, T.W. (1992), "Therapeutic relationships and iatrogenic outcomes: The blame-and-change maneuver in psychotherapy," Psychotherapy, 29:474-480

Cannon, L. (1991), President Reagan: The Role of a Lifetime, New York: Academic Press, p.60

Ceci, S.J. (1994) "Cognitive and social factors in children's testimony," in B. Sales and G. Vandenos (eds.), pp. 14-54. Psychology and Law Master Lectures, Washington, D.C: American Psychological Association

Dawes, R.M. (1993), House of Cards: Psychology and Psychotherapy Built on Myth, New York: The Free Press

Ernsdorff, G.M. and Loftus, E.F., (1993) "Let sleeping memories lie. Words of caution about tolling the statute of limitations in cases of memory represssion,," Journal of Criminal Law in Criminology, 84:1 P. 162

FMS Foundation and Johns Hopkins Medical Institutions Conference (1994), "Memory and Reality: Reconciliation: Scientific, Clinical and Legal Issues of False Memory Syndrome," paper presented Summary of Legal Survey Data (1994), Baltimore, MD, December 9-11, 1994

Frankel, F.H. (1993), "Adult reconstruction of childhood events in the multiple personality literature," American Journal of Psychiatry, June 1993, 150:6:954-958

Frederickson, R (1992) Repressed Memories: A Journey of Recovery from Sexual Abuse. New York: Fireside Books

Halleck, S. et al., (1992), "The use of psychiatric diagnoses in the legal process: Task Force Report of the American Psychiatric Association," Bulletin of the American Academy of Psychiatry and Law, 20:4:481-499 at 495

Harsch, N. and Neisser, U. (1989), "Substantial and irreversible errors in flashbulb memories of the challenger explosion," poster presented at the annual meeting of the Psychonomic Society, Atlanta, November, 1989

Haugaard, J.J., et al. (1991), "Children's definition of the truth and their competency as witnesses in legal proceedings, Law and Human Behavior, 15:253-272

Herman, J.L. and Schatzow, E. (1987), "Recovery and verification of memories of childhood sexual trauma,," Psychoanalytic Psychology, 4:1-14

Holmes, D. (1990), "The evidence for repression: An examination of sixty years of research," (p. 85-102), in J. Singer (ed.) Repression and Dissociation, Chicago: University of Chicago Press

Horner, T.M., Guyer,M.J., Kalter, N.N. (1993), "The biases of child sexual abuse experts: Believing is seeing," Bulletin of the American Academy of Psychiatry and Law, 21:3: 281-292

Kihlstrom, J.F. (1993), "The recovery of memory in the laboratory and clinic," paper presented at the joint Rocky Mountain Psychological Conference, Phoenix, Arizona, April 1993

Lindsay, S. and Read, J.D. (1994), "Psychotherapy and memories of childhood Abuse," Applied Cognitive Psychology, 8:4, pp. 281-338

Loftus, E.F. (1992), "The reality of repressed memories," American Psychologist, Vol. 48, No. 5, pp. 518-537

Loftus, E.F. , Coan, J.A., and Pickrell, J.E. (1996), "Manufacturing false memories using bits of reality," In L.M. Reder (Ed.), Implicit Memory and Metacognition (pp. 195-220), Mahway, NJ: Lawrence Erlbaum Associates, Inc.

Loftus, E. and Ketcham, K. (1990), Witness for the Defense: The Accused, the Eyewitness and the Expert Who Puts Memory on Trial, New York: St. Martin's Press

Loftus, E.F. and Rosenwald, L.A. (1993), "Buried memories; Shattered lives," ABA Journal, November, pp. 349-361

Neisser, U. and Harsch, N. (1992), "Phantom flashbulbs: False recollections of hearing the news about Challenger," in Winograd, E. and Neisser, U. (eds.) Affect and Accuracy in Recall: Studies of Flashbulb Memories, New York. Cambridge University Press, pp. 9-31

Ofshe, R. and Watters, E. (1994), Making Monsters: False Memories. Psychotherapy and Sexual Hysteria, New York: Charles Scribner's Sons, pp. 75-76, 27

Piper, A. (1993), "`Truth serum' and `recovered memories' of sexual abuse: A review of the evidence," Journal of Psychiatry and Law, Winter 1993, p. 465

Pope, H., (1994), "Interview with," Currents in Affective Illness, XIII:7, pp. 5-12.

Pope, H.G. and Hudson, J.I. (1995), "Can memories of childhood sexual abuse be repressed?" Psychological Medicine, 25:121-126

Pynoos, R.S. and Nader, K. (1989), "Children's memory and proximity to violence," Journal of American Academy of Child and Adolescent Psychiatry, 28:236-241

Rogers, M.L. (1994), "Factors to consider in assessing complaints by adult litigants of childhood sexual abuse," Behavioral Science and the Law, 12:279

Sales, B.D. et al. (1994), "In a dim light: Admissibility of child sexual abuse memories," Applied Cognitive Psychology, 8:399

Slovenko, R. (1984), "Syndrome evidence in establishing a stressor," Journal of Psychiatry and Law, p. 447

Spanos, N.P., et al. (1991), "Secondary identity enactments during hypnotic past-life regression: A sociocognitive perspective," Journal of Personality and Social Psychology, 61:308-320

Tillman, J.G., Nash, M.R. and Lerner, P.M. (1994), "Does trauma cause dissociative pathology?" in S. Lynne and J. Rhue (Eds.) Dissociation: Clinical. Theoretical and Research Perspectives, New York: Guilford Press

Wakefield, H. and R. Underwager (1994), Return of the Furies, Chicago, IL: Open Court Publishing

Williams, (1994), "Recall of childhood trauma: A prospective study of women's memories of child sexual abuse," Journal of Clinical Consulting and Psychology, 62 Vol. 6, pp 1167-1176

Yapko, M.D. (1994), Suggestions of Abuse: True and False Memories of Childhood Sexual Trauma, New York, Simon and Schuster, p. 89.

STATEMENT OF INTEREST OF AMICUS CURIAE

Childhood sexual abuse, real or imagined, is an issue fraught with high emotion. The FMS Foundation deplores child abuse and agrees that society must support real victims of abuse. It is the Foundation's belief, however, that certain psychotherapeutic theories and practices have lead many people to falsely believe they were sexually abused as children. There is a growing body of scientific evidence which supports this view and casts doubt on the premises upon which such therapies are based. Contrary to popular belief, there is little empirical support for the assumed prevalence of repression or even for the theory of repression itself.[3] There is, however, a long history of research and scientific data supporting the premise that human memory is highly malleable and suggestible.[4]

Immediately after its inception, the FMS Foundation began a legal survey project to track the status of "repressed memory" lawsuits at each level and in every jurisdiction in the United States.[5] The gathered data show that to date over 800 cases, both civil and criminal, have been filed throughout the country. As of spring, 1994 there have been over 200 documented reports of individuals having retracted accusations made on the basis of repressed and recovered memory.[6]

The FMS Foundation strongly believes that the rights of defendants to respond to repressed memory claims must not be minimized. Amicus files this brief to assure that the courts are aware of the ongoing debate in the scientific and mental health communities regarding the validity of the "repressed memory" theory in the interest of balancing the rights of both plaintiffs and defendants.

STATEMENT OF THE CASE

STATEMENT OF JURISDICTION

POINTS OF ERROR

Point of Error No. I.

The Court of Appeals erred in holding the discovery rule applied in this case. (Op. p. 4).

GENERAL STATEMENT

BRIEF OF THE ARGUMENT

The Court of Appeals erred in holding the discovery rule applied in this case. (Op. p. 4).

A. Applicable Statute of Limitations

Neither the parties nor Amicus takes exception to the finding of the Court of Appeals with regard to the two-year statute of limitations, its purpose, and the operation of the discovery rule to extend the time parameters when injuries are not manifested or discovered despite the exercise of reasonable care and diligence. The Court's authority was Texas Civil Practice and Remedies Code # 16.003(a) (Vernon 1986); Moreno v. Sterling Drug. Inc., 787 S.W. 2d 348, 351 (Tex. 1990); Willis v. Maverick, 760 S.W. 2d 642, 644 (Tex. 1988); and Weaver v. Witt, 561 S.W. 2d 792, 794 (Tex. 1977).

B. Public Policy Considerations Underlying The Statute of Limitations

Moreno, supra, enunciates clearly the public policy considerations underlying the statute of limitations:

The primary purpose of all limitations statutes is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available. See also Robinson v. Weaver, 550 S.W. 2d 18 (Tex. 1977).

When determining whether the discovery rule was applicable to a new cause of action, this court held in Willis, supra, that decisions in the area of medical malpractice were particularly instructive. A reference was made to Gaddis v. Smith , 417 S.W. 2d 577 (Tex. 1977).

In Gaddis, supra, the court indicated that in order to preserve the precept of the statute of limitations, objective verifiable evidence of injury was required before the discovery exception to the statute of limitations could be applied. The court in Gaddis, quoting from Fernandi v. Strully, 173 A.2d 277 (1961), a New Jersey decision, held:

The question when a cause of action accrues is a judicial one, and to determine it in any particular case is to establish a general rule of law for a class of cases, which must be founded on reason and justice.

The decision of the Washington Supreme Court in Tyson v. Tyson, 727 P. 2d 226, (1986) on this issue is acutely on point. In declining to apply the discovery rule to repressed memory cases, that court stated:

It is proper to apply the discovery rule in cases where the objective nature of the evidence makes it substantially certain that the facts can be fairly determined even though considerable time has passed since the alleged events occurred. Such circumstances simply do not exist where the plaintiff brings an action based solely on a alleged recollection of events which were repressed from her consciousness and there is no means of independently verifying her allegations in whole or part. If we applied the discovery rule to such actions, the statute of limitations would be effectively eliminated and its purpose ignored. A person would have unlimited time to bring an action while the facts became increasingly difficult to determine. The potential for spurious claims would be great and the probability of the courts determining the truth would be unreasonably low.

The Tyson, supra, ruling was based on judicially sound principles, namely, that the delayed discovery doctrine does not apply to toll the statute of limitations in a case where there is no empirical evidence to verify the existence of the alleged acts and the resultant injury and which rests solely an a subjective assertion. The court recognized the inherent dangers in allowing the delayed discovery doctrine to toll the statute of limitations in cases of repressed memory of childhood sexual abuse. Nonetheless, at the time Tyson was decided, a potential plaintiff, a woman who claimed repressed memories of childhood sexual abuse but was unable to sue her father following the decision, together with many "victims" organizations and plaintiffs' attorneys, lobbied the legislature in Washington and other states, arguing that the laws should protect those persons who are traumatized into "repressing" their memories of childhood sexual abuse.[7]

Amicus argues that an acceptance of repressed memory claims as sufficiently reliable to toll the statute of limitations would have the effect of abrogating the public policy conditions behind limitations statutes.[8] The defendant's right to defend against a stale, unverifiable claim outweighs the plaintiff's right to present a case if there is insufficient evidence.

Further, the question of what constitutes legally sufficient evidence to toll the statute of limitations in repressed memory litigation should be considered in light of the United States Supreme Court Decision in Daubert v. Merrell Dow Pharmaceutical. Inc., 113 S.Ct. 2786 (1993) which is discussed, infra. See also Precision Sheet Metal Mfg. Co. v. Yates, 794 S.W.2d 545 (Tex. App. -Dallas, 1978, writ denied).

C. Repressed Memories: Current Scientific Understanding

Extending the Statute of Limitations under the exception rule for "recovered repressed memory" claims raises a number of troublesome issues. Empirical data does not exist to support the assumed prevalence of repression as a common response to trauma, the mechanism by which repression is posited to operate, or even to verify the concept of repression itself. Furthermore, studies have shown that no intrinsic test exists which can determine the reliability of "recovered repressed memories" and have suggested that no such test may ever be found. However, what has been demonstrated is that false memories can easily be implanted and are often accompanied by misleading affect and confidence

1. Recovered Memories Are of Unproven Reliability

Despite claims of the widespread occurrence of repression of childhood sexual abuse, comprehensive reviews [9] of the literature used to support the theory of repression reveal that, as yet, there is no controlled, experimental evidence to support authenticity of such memories or to confirm their very existence.

As clinical psychologist, Michael D. Yapko, explains, "The truth is, we don't know very much about the repression of memories of trauma. We don't know how common repression really is or how authentic seemingly distant memories are that suddenly and dramatically surface in response to the stimulus of a lecture, self-help book, or a therapy session."[10]

Although researchers and clinicians have sought to prove an individual can selectively forget sexual abuse spanning several developmental phases, from infancy into adolescence, where the overall autobiographical memory system was otherwise intact, evidence of such selective forgetting and sudden emerging of corroborated events does not yet exist.[11]

In light of these findings and in response to growing concerns of the mental health community, several professional organizations,[12] including the American Medical Association and the American Psychological Association, have recently issued statements cautioning against assuming that "recovered repressed memories" are inherently accurate and reliable. In June, 1994, the American Medical Association issued a statement [13] that reads:

The AMA considers recovered memories of child sexual abuse to be of uncertain authenticity, which should be subject to external verification. The use of recovered memories is fraught with problems of potential misapplication.

Similarly, in December, 1993, the Board of Trustees of the American Psychiatric Association approved a statement [14] in response to "passionate debates" which they feared may have "obscured the recognition of a body of scientific evidence" in the treatment of child sexual abuse by noting:

The retrieval and recounting of a memory can modify the form of the memory, which may influence the content and conviction about the veracity of the memory in the future. Scientific knowledge is not yet precise enough to predict how a certain experience or factor will influence a memory in a given person.

A special panel of the American Psychological Association issued an interim report in November, 1994 [15] which summarized the consensus of current research literature:

There are gaps in our knowledge about the processes that lead to accurate or inaccurate recollection of childhood sexual abuse...The mechanism(s) by which such delayed recall occur(s) is/are not currently well understood.

2. There Is No Reliable Internal Test To Determine the Accuracy of a "Recovered Repressed Memory." External Verification is Required.

There is no reliable method of determining the accuracy of "recovered repressed" memory by examining its content or characteristics.[16] As Dr. Yapko points out, greater levels of certainty, emotionalism, or detail about a memory do not necessarily indicate a greater likelihood of its accuracy. This is reported to be the consensus of many of this country's experts on memory, suggestibility and the treatment of abuse survivors.[17]

As the American Medical Association [18] specifically stated it is not yet known how to distinguish true memories from imagined events. Likewise, the American Psychiatric Association [19] cautions, "It is not yet known how to distinguish with complete accuracy, memories based on true events from those derived from other sources."

Methods seeking to determine a "recovered repressed" memory's accuracy by examining its content and affect have been shown to be unreliable. Adults can have vivid memories, of which they are extremely confident, that are nevertheless quite wrong. Once those false memories have been established, they are not easily changed by contrary evidence.[20] A person's level of confidence and conviction in a memory are not proof of its veracity.[21] Neither the clarity and volume of detail of a memory nor its relative vagueness are considered sufficient to judge its truthfulness [22] nor is the inclusion of false or inconsistent statements considered conclusive proof of its falsity. Such inconsistencies may, however, raise the problem of distinguishing which parts are true and which parts are false.[23] This problem is particularly acute when the complainant has not critically examined the source of his testimony.[24]

No set of behavior or psychological symptoms has been reliably shown as probative of the accuracy of the "recovered memories" of trauma. [25] This view has also been supported by an American Psychological Association Working Group which reported: "there is no single set of symptoms which automatically means that a person was a victim of childhood sexual abuse."[26]

Symptoms such as depression, anxiety, sexual dysfunction, eating disorders, or low self esteem are not specific in etiology to sexual abuse. They may be caused by a history of sexual abuse or they may stem from other sources. Empirical findings, therefore, do not support a strong causal link from known trauma to any specific set of symptoms.[27]

Dr. Richard Ofshe, a social psychologist at the University of California at Berkeley, in his review of the use and misuse of popular and clinical "symptom lists" explains:

Even though some of the disorders listed can result from abuse, it does not mean that someone with these symptoms can be expected to have experienced abuse. Depression, self-destructive behavior, anxiety, feelings of isolation and stigma, and poor self-esteem do not result only from child abuse but from a large number of experiences, chemical imbalances, genetic factors, behaviors, or combinations of these factors...The notion that psychiatrists, because of their advanced training, can relate symptoms to a particular event is not accepted within the ranks of scientific psychology or scientific psychiatry.[28]

Many researchers such as Dr. Terence Campbell have shown that "there is little relationship between the confidence psychologists and psychiatrists express in their judgments and how accurate those judgments really are."[29]

A 1992 Task Force Report of the American Psychiatric Association concluded:

There have been recent instances in which psychiatrists have testifed that the presence of symptoms related to post-traumatic stress disorder is powerful evidence that certain abusive events such as rape or child molestation have taken place. Here, a diagnosis based on a DSM-III-R category is used to conclude that criminally actionable conduct has occurred. In the abesence of a scientific foundation for attributing a person's behavior or mental condition to a single east event, such testimony should be viewed as a misuse of psychiatric expertise.[30]

Logical errors are made when sufficient conditions are assumed to be necessary. This would happen if a therapist inferred a history of childhood sexual abuse from one or more current behaviors which are not specifically known to be the exclusive result of such history.

Thus, while arguments about the quality and nature of behavioral and psychological symptoms are often advanced in expert testimony to endorse the accuracy of "recovered memory," they are known to be unreliable to do just that. Prudent researchers and clinicians urge that in the absence of any reliable method of internal analysis of the memories, external corroboration be required to determine a memory's accuracy.

Is it prudent to accept testimony whose reliability has been questioned by careful and empirical study? Is it sound precedent to open the door to a class of claims which cannot be verified by any independent or objective evidence?

3. Does Trauma Repression Exist? [31] Scientific Support for This Popular Theory Has Not Been Found

The notion of repression is today part of our culture. Many writers, both popular and professional, assume it is a common response to trauma [32] and that when recovered, a repressed memory is certainly an accurate representation of historical events. This assumption is often found in memory recovery therapy. When communicated to patients, it can be the source of false memories.[33]

Richard Ofshe, outspoken critic of repressed memory, has described the theory as "either the most fascinating psychological discovery of the 20th century or the centerpiece of the most embarrassing mistake modern psychiatry and psychology have ever made."[34]

As the scientific evidence shows, despite these assertions, empirical studies have not, as yet, been able to confirm the popular assumptions about the repression mechanism.[35] The whole theory itself is on sufficiently shaky ground so as to make it improper to serve as a basis for any legal action.

Dr. David Holmes, Professor of Psychology at the University of Kansas carefully examined studies offered as verification of the existence of repression in 1974 and again in 1990 when he wrote that he found no reason to revise his earlier findings. He concluded that "despite over sixty years of research involving numerous approaches by many thoughtful and clever investigators, at the present time there is no controlled laboratory evidence supporting the concept of repression."[36]

In addition to anecdotal case reports,[37] support for the theory of "repression" is most frequently drawn from three research studies (Herman and Schatzow, Briere and Conte, and Williams).[38] Drs. Harrison Pope and James Hudson recently conducted an extensive and thorough review [39] of these three studies and found that the available clinical evidence was insufficient to conclude that individuals can repress memories of childhood sexual abuse. For an in-depth look at their analysis, please refer to "Can Memories of Childhood Sexual Abuse be Repressed?" (1995) Psychological Medicine. 25, p 121-126. In addition, Pope's article which summarizes these studies is included in the Appendix.

Researchers seeking evidence for repression have also looked to reports of the psychological response to individuals who had lived through severe trauma. Studies of holocaust survivors or of persons who had witnessed a parent injured or killed and the like have found that, rather than repress memory of the event, they had trouble pushing it out of mind. Although the trauma is agreed to be severe, it has not led to reports of dissociation in the clinical or empirical literature.[40]

There is, however, substantial, convincing and undisputed evidence of the ability to "implant" false memories.[41] Memories of truly traumatic events are easily altered [42] and false recollections, though felt to be actual memories of real events can easily be induced by suggestion.[43] As Dr. Pope states:

Overall, there may be a mixture of cases of genuine abuse that was perceived as sufficiently mild to have been forgotten by the processes of ordinary forgetfulness, genuine abuse that was never forgotten but was reported by the individual to have been forgotten, and false memories of abuse that never occurred but apropos of which the individual has developed what he or she believes to be memories. I believe that all three phenomenon occur although in what prevalence no one is certain. But at this stage. there is no scientific evidence demonstrating that people who genuinely experience severe and protracted abuse can entirely forget it for a period of time and only years later remember it.

One of the striking findings in psychological research over the last fifty years is that even intelligent and sophisticated people can be highly suggestible...people can be extraordinarily vulnerable to suggestion under the pressure of peers or authority... all of which occur in individual psychotherapy and may have profound influences, or at least influences that are greater than most of us would like to believe . . . [44]

4. Possible Sources of False Memories

All therapists make use of their client's memory. They seek to organize, interpret and summarize this information thematically. If a therapist is unaware of, or chooses to act in spite of, biased expectations and assumptions, that result may be a profound distortion of the memories of their clients. This effect has been widely discussed by memory researchers, social scientists, and clinicians. [45] The American Medical Association [46] summarizes by saying:

Questions have been raised about the veracity of such reported memories, one's ability to recall such memories, the techniques used to recover these memories, and the role of the therapist in developing the memories...It is established, for example, that a trusted person such as a therapist can influence an individual's reports... [and citing Loftus, ] there have been reports of therapists advising patients that their symptoms are indicative -- not merely suggestive -- of having been abused, even when the patient denies having been abused...Other research has shown that repeated questioning may lead individuals to report events that in fact never occurred.

Repressed memory therapies commonly employ various memory-enhancement techniques such as hypnosis, the drug sodium amytal and dream analysis. Many researchers as well as the American Medical Association [47] have shown that one memory recovery technique, hypnosis, though touted by some as effective in recovery of memories of traumatic events, is known to increase suggestibility and confabulation, "memory hardening," source amnesia and loss of critical judgment. A recent study of the use of sodium amytal interview concluded that "the amytal interview cannot be considered to guarantee access to anything remotely resembling truth."[48] While rigorous scientific assessment of other methods of memory enhancement are not available,[49] many researchers and clinicians believe memory recovery techniques can be so suggestive as to distort a patient's memories. It is possible to create false memories and even more source amnesia which renders a patient unaware of the suggestion which resulted in the distortion.[50]

One of the most popular writings on the subject of "repressed memory" of childhood sexual abuse is The Courage To Heal (Bass & Davis, 1988), often referred to as the "bible" of the incest book industry.[51] It advertises itself as a guide for women survivors of child sexual abuse and advises its readers, "[I]f you think you were abused and your life shows the symptoms, then you were."[52] Lindsay and Read, two Canadian cognitive psychologists specializing in research on human memory, offer an in-depth analysis of their research on the issue of "repressed memories" and conclude that the approaches to psychotherapies advocated by certain self-help books and by some clinical practitioners may inadvertently lead some adult clients to create illusory memories of childhood sexual abuse.[53]

Child sexual abuse is a deplorable and heinous crime. However, when considering whether to apply the discovery rule to a new class of actions, normal standards of evidence and reason must not be forgotten. This is especially important when the only evidence available to support the claim is based on a theory of unproved reliability. Dr. Terence Campbell concluded:

Extending statute of limitations related to adult claims of recovered memories of childhood sexual abuse presumes (1) repression is a viable construct, and (2) mental health professionals can provide courts of law with reliable evidence of formative child sexual abuse. A review and analysis of the relevant literature concludes that neither of these assumptions can claim empirical support. Instead, the available data indicate the relative ease with which psychotherapy can mistakenly persuade clients that they were sexually abused as children.[54]

D. The Rule Established by the United States Supreme Court in Daubert

New standards for the use of scientific evidence have been recently enunciated by the Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceutical. Inc., 113 S.Ct. 2786 (l993).[55] The court examined the standard for admission of expert testimony under Rule 702 of the Federal Rules of Evidence.[56]

Although not cited by either of the parties, this court may find useful the suggested guidelines for determining whether expert testimony of this nature is appropriate for the trier of fact.

The case held that the "general acceptance" standard of Frye v. United States, 293 F 1013 (1923) was superseded by the Federal Rules of Evidence (FRE) and instructs the court to be concerned, in addition, with the reliability of scientific evidence. Under the FRE, federal trial judges must insure that any and all scientific testimony or evidence is not only relevant but reliable and that in a federal case involving scientific evidence, evidentiary reliability is based upon scientific validity.

The decision directs that the FRE assigned to the trial judge the task of insuring that an expert's testimony, rests on a reliable foundation and is relevant to the task at hand. Expert testimony must be not only relevant, but scientifically valid. However, without a reliable and valid scientific basis, even relevant evidence ought not to be admitted.

In determining validity and reliability, the Supreme Court adapted criteria of the scientific community. Is the theory or technique testable or falsifiable? Has the theory or technique been subject to peer review and publication? (The court points out that publication, one element of peer review, is not a sine qua non of admissibility; it does not necessarily correlate with reliability.) What is the known or potential error rate for the scientific technique? Are there standards controlling the technique's operation? [57]

It is clear from the argument offered by Amicus on this issue, that the theory of repressed memory would not withstand the standards of scientific evidence required under the decision in Daubert, supra, Most claims of this nature appear to be based on "memories" recovered in a therapeutic setting.

Expert opinion testimony is offered as the sole corroboration for the claims of alleged abuse, repression, and subsequent discovery. Such subjective expert opinion testimony often refers to psychological theory regarding repression and psychological and behavioral symptoms believed to correspond to a history of childhood sexual abuse. In the absence of objective corroborating evidence, courts are therefore being asked to weigh the sufficiency of plaintiff and expert testimony to toll the statute of limitations and to permit a trial on the merits.

Furthermore, Daubert notes that scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes. As mentioned above, the professional community has accepted the use of behavioral and psychiatric symptoms as an aid to assigning proper treatment, but cautions against its use as proof of the existence of a specific stressor from the patient's past.

The decision of the Supreme Court of New HamPshire in McCollum v. D'Arcy, 638 A.2d 797 (1994), mandated external validation of the phenomenon of memory repression. McCollum involved the case of a now 50 year old natural daughter who sued her parents for abuse which allegedly took place 35 years ago and remained repressed until she attended a therapy workshop on child abuse.

The trial court denied the defendant's motion to dismiss which argued that the suit was barred by the statute of limitations. That decision resulted in an interlocutory appeal which reached the state's supreme court.

Although the court applied the discovery rule in its affirmance of the trial court's decision, in keeping with the spirit of Daubert, it noted on remand:

The plaintiff still carries the burden to substantiate her allegations of abuse, and, if challenged, to validate the phenomenon of memory regression itself and the admissibility of evidence flowing therefrom.

Evidence which the respondent offers to support her alleged abuse would not measure up to the rigorous standard in Daubert. Without evidence that the theory of "repressed memory" of childhood sexual abuse is scientifically valid under the clear standards set forth there, the court should refrain from accepting such theory as certainty.

E. The Courts Should Not Usurp the Legislature

The medical controversy surrounding the issue of recovery of repressed memories mandates a thorough and unbiased review of what constitutes accepted scientific theory and scientific standards of evidence. The legislature, with its resources, is the appropriate forum to consider this matter.

There are significant judicial precedents for deferring to the legislature. Amicus would agree with Judge Barber's dissenting opinion in L.C. v. A.D., No. 05-92-02967-Cv (Tex. App. - Dallas, March 21,1994, n.w.h.) which provides in relevant part:

If the limitations period is to be lengthened in cases of this nature, I would leave it to the legislature to amend the limitations statute as, according to the majority, many states have done.

In light of the maturing understanding of the problems of unreliability and threats posed to defendants' rights in these cases, some legislatures are now requiring corroboration of repressed memory claims to apply the delayed discovery doctrine to toll the statute of limitations.[58] Courts and legislatures are showing a new reluctance to open the door further to allow actions based on unsubstantiated theory and unsupported by objective, verifiable and corroborative evidence.

Harrison G. Pope, Jr., M.D. -- Associate Professor, Harvard Medical School; Staff Psychiatrist, McLean Hospital, Belmont, MA; and FMS Foundation Advisory Board Member -- states in an interview with Currents in Affective Illness, Volume XIII, Number 7, July l994,[59] that there is a paucity of studies suggesting the validity of recovered memory of traumatic events and that those few studies have significant flaws:

There are no methodologically sound studies demonstrating the efficacy of recovered memory therapy, and, as we discussed, there are no convincing data to indicate the existence of strong repression...One should not use a potentially dangerous therapy unless one has evidence to suggest that its benefits outweigh its risks...Recovered memory therapy has risks that outweigh its benefits. In my opinion everything else becomes moot.

So, too, the benefit of broadening the scope of the statute of limitations must be weighed in light of its risks. Dr. Pope points out that although we can not know how many families have been the victims of false accusations based on repressed memories, "A number of thousands of cases does not seem unreasonable." Pope also makes the practical observation that "when someone develops a fixed, false belief that becomes a principal reason for living or a principal focus for activity, he or she may be diverted from finding more effective strategies for coping or solving problems."[60]

Assuming arguendo that a number of actual repressed memory cases exist, the pain and suffering which many wrongfully accused individuals and their families will undergo in trying to defend an action brought many years after the alleged event, will nonetheless outweigh, in public policy terms, any relief which might be granted to a legitimate plaintiff. Indeed, this is one of the public policy considerations which the legislature will have to address.

In response to the influx of repressed memory cases, many alarmed psychiatrists, psychologists and scientists have begun to challenge not only the theory of repression as it applies to instances of childhood sexual abuse, but also the efficacy and safety of recovered therapy in toto. Today, however, as a direct response to the growing concern of the public, the researchers and the medical community to experimental therapeutic practices and the reliance on expert testimony by mental health care providers providing such psychological services, some states are considering legislation which would require mental health care providers to obtain informed consent for the treatment from their clients, to inform insurance companies relative to such treatment plans and to set standards for expert testimony.

An example of such an enactment is New Hampshire House Bill No. 236 (Jan. 20, 1995) that defines the standard of scientific reliability mental health care providers would be required to meet. That proposed statute provides in relevant part:

"Research" and "reliable scientific research" entail publicly documented investigations of falsifiable hypotheses, using appropriately constructed treatment and non treatment control groups, constructed so as to permit determinations of methodological reliability and validity conducted at reputable institutions of higher learning, medical schools, research institutes and departments of psychology and reported in sufficient detail to be meaningfully interpreted and replicated at alternate research sites. Research would generally follow the criteria for acceptable scientific conceptions and evidence as noted by the United States Supreme Court in Daubert V. Merrell Dow Chemicals. Inc. 113 S.Ct. 2786 (1993).

As awareness of the inherent problems of "repressed memory" litigation and the questionable psychotherapeutic techniques associated with it becomes available, it is hoped that the courts and legislatures will begin to frame laws that are designed to balance not only the rights of both parties, but also the welfare of the public at large. There is a growing consensus among the states that the early views of "repressed memory" cases were unduly simplified and that there was an all-too-hasty acceptance of the underlying theory.

The decision in L.C., supra, also makes clear that the courts, perhaps prudently so, have been slow to act in this area of the law. It has been the legislatures of the various states which have established the guidelines for if, when, and under what criteria cases based upon repressed memory should fall within the discovery rule of the statute of limitations. It has the means and resources to solicit competent, unbiased testimony from the scientific community at large. Amicus argues that it would be just and appropriate for the court to defer to the legislature on this issue.

CONCLUSION

As Dr. Loftus notes in an article analyzing the theory of repression in psychology:

Nonetheless, when we move from the privacy of the therapy session, in which the client's reality may be the only reality that is important, into the courtroom, in which there can be but a single reality, then we as citizens in a democratic society are entitled to more solid evidence.

...Uncritical acceptance of uncorroborated trauma memories by therapists, social agencies and law enforcement personnel has been used to promote public accusations by alleged abuse survivors. If the memories are fabricated, this will of course lead to irreparable damage to the reputations of potentially innocent people...[61]

In relying on the subjective evidence of respondent's expert testimony to apply the discovery rule to the instant case, the court undermines the policy behind the statute of limitations by requiring the petitioner to defend against stale claims. Only after the legislature has thoroughly examined the latest scientific evidence regarding the reliability of repressed memories of childhood sexual abuse should the law be changed.

PRAYER FOR RELIEF

ACKNOWLEDGEMENT OF ASSISTANCE

Thomas A. Pavlinic
The Conte Building
116 Defense Highway, Suite 501
Annapolis, MD 21401
(410) 974-6003
(410) 974-6019 (Facsimile)
Attorney for Amicus Curiae

CERTIFICATE OF SERVICE

Thomas A. Pavlinic

APPENDIX

I. False Memory Syndrome Foundation Scientific and Professional Advisory Board Membership List.

II. Text of "The Reality of Repressed Memories" by Elizabeth F. Loftus, Ph.D., American Psychologist, May, 1993.

III. Text of "Recovered Memories": Recent Events and Review of Evidence, an Interview with Harrison G. Pope, Jr., M.D., Currents in Affective Illness, July, 1994.

IV. Bibliography of Professional Findings of Interest to the Legal Community.

NOTES

[2] A list of the Advisory Board Members is included in the Appendix.

[3] See, e.g., Frankel, F.H. (1993), "Adult reconstruction of childhood events in the multiple personality literature," American Journal of Psychiatry, June 1993, 150:6:954-958. Holmes, D. (1990), "The evidence for repression: An examination of sixty years of research," in J. Singer (ed.) Repression and Dissociation, University of Chicago Press, Chicago. Lindsay, S. and Read, J.D. (1994), "Psychotherapy and memories of childhood abuse," Applied Cognitive Psychology, 8:4. Pope, H.G. and Hudson, J.I. (1995), "Can memories of childhood sexual abuse be repressed?" Psychological Medicine, 25: 121-126; Tillman, J.G., Nash, M.R. and Lerner, P.M. (1994), "Does trauma cause dissociative pathology?" in S. Lynne and J. Rhue (eds.), Dissociation: Clinical. Theoretical and Research Perspectives, Washington, D.C: American Psychological Association.

[4] Loftus, E.F. (1992), "The reality of repressed memories," American Psychologist, Vol. 48, No. 5, pp. 518-537. The complete text of this article is included in the Appendix.

[5] FMS Foundation and Johns Hopkins Medical Institutions Conference (1994), "Memory and Reality: Reconciliation: Scientific, Clinical and Legal Issues of False Memory Syndrome," paper presented Summary of Legal Survey Data (1994), Baltimore, MD, December 9-11, 1994.

[6] Wakefield, H. and R. Underwager (1994), Return of the Furies. Chicago, IL: Open Court Publishing Company, p. 101.

[7] See, Loftus, E.F. (1992). After the decision in Tyson, supra,Washington became the first state to apply the discovery doctrine to civil cases of childhood sexual abuse by enacting Wash. Rev. Code Ann. #4.16.340.

[8] Ernsdorff, G.M. and Loftus, E.F., (1993), "Let sleeping memories lie. Words of caution about tolling the statute of limitations in cases of memory represssion," The Journal of Criminal Law in Criminology, 84:1 P. 162.

[9] See footnote 3.

[10] Yapko, M.D. (1994), Suggestions of Abuse: True and False Memories of Childhood Sexual Trauma. New York, Simon and Schuster, p. 89.

[11] Rogers, M.L. (1994), "Factors to consider in assessing complaints by adult litigants of childhood sexual abuse," Behavioral Science and the Law, 12:279.

[12] See e.g., The Australian Psychological Society Limited, Board of Directors issued "Guidelines relating to the reporting of recovered memories" on October 1, 1994. The American Society of Clinical Hypnosis (ASCH) is completing a study on hypnosis and repressed memory. The British Psychological Society, the United Kingdom Council for Psychotherapy, and the British Association of Counselors have working parties reviewing the research on repressed memories in order to formulate guidelines for treating child sexual abuse issues.

[13] American Medical Association: Report of the Council on Scientific Affairs, C.S.A. Report 5-A-94.

[14] American Psychiatric Association, Board of Trustees (1993), "Statement on memories of sexual abuse," which was approved by the Board of Trustees of the American Psychiatric Association on December 12, 1993.

[15] American Psychological Association, Counsel of Representatives, Working Group on Investigation of Memories of Child Abuse (November 11, 1994), Interim Report. The full report of the working group is expected at the APA Council of Representatives in February, 1995.

[16] Rogers (1994).

[17] Yapko (1994), pp. 160,168.

[18] American Medical Association (1994).

[19] American Psychiatric Association (1993).

[20] Neisser, U. and N. Harsch (1992), "Phantom flashbulbs: False recollections of hearing the news about Challenger," in Winograd, E. and Neisser, U. (eds.) Affect and Accuracy in Recall: Studies of Flashbulb Memories, New York: Cambridge University Press, pp. 9-31.

[21] Ernsdorff, G.M. and Loftus, E.F. (1993), Ibid, referring to decades of research on memory state, "A confident witness is not necessarily an accurate one." Loftus, E. and Ketcham, K. (1990), Witness for the Defense: The Accused. the Eyewitness and the Expert Who Puts Memory on Trial. St. Martin's Press, New York p. 208, note that, "When false memories are created by misinformation, the holders of these memories can describe these false creations in great detail and with great conviction."

[22] Yapko (1994), p. 80.

[23] Ernsdorff and Loftus (1993).

[24] False memories may develop if a patient comes to believe that dreams or feelings ought to be accepted as historically accurate. Bass, E. and Davis, L. (1988), The Courage to Heal: Women Healing from Sexual Abuse, Harper and Row, New York, simply say, "If you think you were abused and your life shows the symptoms, then you were."

[25] Lindsay and Read (1994).

[26] American Psychological Association (1994).

[27] The Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association to aid professionals in identifying mental disorders, almost completely omits any discussion of underlying causes of syndromes. Dr. Robert L. Spitzer, task force chairman for the DSM is quoted as saying, "The emphasis is on description of the problem, not the why and how, because in most cases we don't really know." in Slovenko, R. (1984), "Syndrome evidence in establishing a stressor," Journal of Psychiatry and Law, p. 447.

[28] Ofshe, R. and E. Watters, (1994) Making Monsters: False Memories, Psychotherapy and Sexual Hysteria, New York: Charles Scribner's Sons, pp. 75-76, 270.

[29] Campbell, T.W. (1994) "Repressed memories and statute of limitations: Examining the data and weighing the consequences," American Journal of Forensic Psvchology, 16:2, p.25-51. See also, Dawes, R.M. (1993), House of Cards:Psychology and Psvchotherapy Built on Myth, New York: The Free Press; Horner, T.M., Guyer, M.J., Kalter, K.N. (1993), "The biases of child sexual abuse experts: Believing is seeing," Bulletin of the American Academy of Psychiatry and Law, 21(3) p. 281-292.

[30] Halleck, S. et al., (1992) "The use of psychiatric diagnoses in the legal process: Task Force Report of the American Psychiatric Association," Bulletin of the American Academy of Psychiatry and Law 20:4:481-499 at 495.

[31] The factors which distinguish "repression" from the normal idea of "motivated forgetting" are summarized by Holmes: Repression is posited to be an involuntary defense which happens in such a way that what is repressed remains fundamentally intact. The view found in both popular writing and from some mental health professionals apparently makes no distinction between repression and forgetting, considering all absence of memory to be psychologically motivated or repressed. See, e.g., Frederickson, R. (1992), Repressed Memories: A Journey of Recovery from Sexual Abuse. New York: Fireside Books.

[32] It is common to read claims such as "most incest survivors have limited recall about their abuse" or "half of all incest survivors do not remember that the abuse occurred." Blume, E. (1990) Secret Survivors: Uncovering Incest and Its After-Effects in Women, New York: John Wiley & Sons, p.81.

[33] See, e.g., Kihlstrom, J.F. (1993), "The recovery of memory in the laboratory and clinic," paper presented at the joint Rocky Mountain Psychological Conference, Phoenix, Arizona, April, 1993. The complete text of the article is included in the Appendix.

[34] Cited by Loftus, E.F. and L.A. Rosenwald (1993), "Buried memories; Shattered lives," ABA Journal, November, 1993, p. l.

[35] See, e.g., footnote 3.

[36] Holmes (1990), p.98.

[37] Holmes (1990), pp.85-102. Holmes concludes that the evidence of repression most frequently offered by clinicians, "consists of impressionistic case studies, and in view of the data concerning the reliability and validity of clinical judgments, those observations cannot be counted as anything more than unconfirmed clinical speculations -- certainly not as `evidence' for repression."

[38] Herman, J.L. and Schatzow, E. (1987), "Recovery and verification of memories of childhood sexual trauma," Psychoanalytic Psychology, 4:1-14; Briere, J. and J. Conte (1993), "Self-reported amnesia for abuse in adults molested as children," Journal of Traumatic Stress, 6:21-31; and Williams, (1994), "Recall of childhood trauma: A prospective study of women's memories of child sexual abuse," Journal of Consulting and Clinical Psychology, 62 (6)p. 1167-1176.

[39] Pope and Hudson (1995).

[40] See, e.g. Tillman, J.G., et al., (1994) for a summary of psychological studies of survivors of Nazi concentration camps; Loftus, E.F. (1992); Pope, H., (1994), Interview with Currents in Affective Illness, XIII:7, p.7 noted that, "Everyone who was in the Coconut Grove fire will remember the events of November 28, 1942 for as long as they live. There is no one who `woke up' 20 years later and said, `Good God, I was in the Coconut Grove fire and forgot it.' Similarly, in a study of 16 children who witnessed a parent murdered, all 16 remembered the murder vividly. In studies of children kidnapped on a school bus, children involved in a sniper attack, and survivors of marine disasters, concentration camps, and war atrocities, all of the individuals remembered the events, often in painful detail."

[41] See, e.g., Loftus (1992); Campbell (1994).

[42] See, e.g., Pynoos, R.S. and K. Nader, (1989) "Children's memory and proximity to violence," Journal of American Academy of Child and Adolescent Psychiatry, 28:236-241; Harsch, N. and Neisser, U. (1989) "Substantial and irreversible errors in flashbulb memories of the challenger explosion," poster presented at the annual meeting of the Psychonomic Society, Atlanta, November, 1989.

[43] Ceci, S.J. (1994), "Cognitive and social factors in children's testimony," in B. Sales and G. Vandenos (eds.), Psychology and Law Master Lectures, Washington, D.C.: American Psychological Association; Haugaard, J.J., et al. (1991), "Children's definition of the truth and their competency as witnesses in legal proceedings," Law and Human Behavior, 15:253-272; Loftus, E.F. , et al (1996), "Manufacturing false memories using bits of reality,," in L.M. Reder (ed.) (ed.), Implicit Memory and Metacognition, (p. 195-220), Mahway, NJ: Lawrence Erlbaum Associatiates, Inc.; Spanos, N.P., et al. (1991), "Secondary identity enactments during hypnotic past-life regression: A sociocognitive perspective," Journal of Personality and Social Psvchology, 61:308-320; Cannon, L. (1991), President Reagan: The Role of a Lifetime, New York: Academic Press, p.60.

[44] Pope (1994), pp.7-9.

[45] See, e.g., Campbell, T.W. (1992), "Therapeutic relationships and iatrogenic outcomes: The blame-and-change maneuver in psychotherapy," Psychotherapy, 29:474-480; Ofshe, R. and Watters, E. (1994); Yapko, M. D. (1994).

[46] American Medical Association (1994).

[47] American Medical Association (1985), Council Report, "Scientific status of repressing recollection by the use of hypnosis," JAMA, April 5, 1985, Vol. 253; American Medical Association, Council on Scientific Affairs, "Mental health consequences of interpersonal and family violence: Implications for practitioners. CSA Report B (A-93).

[48] Piper, A. (1993),"`Truth serum' and `recovered memories' of sexual abuse: A review of the evidence," Journal of Psychiatry and Law, Winter 1993, p. 465.

[49] American Medical Association (1985).

[50] See, e.g., Campbell (1994).

[51] Loftus (1992), p.525

[52] Bass and Davis (1988), p.22.

[53] Lindsay and Read (1994).

[54] Id.

[55] Daubert has already been applied to a repressed memory case. See State of New Hampshire v. Hungerford, Hillsborough County Superior Court, No. 94-S-95 and State of New Hampshire V. Morahan, Hillsborough County Superior Court, No. 93-S-1734, citing Daubert (consolidated), stated, "Before testimony of the victim's memory of the alleged assault may be admitted, a hearing shall be held at which the burden shall be upon the State to establish that the phenomenon of memory repression and the process of recovery through therapy have gained general acceptance in the field of psychology. The State must establish the validity of the phenomenon and process by demonstrating that the reasoning or methodology underlying the testimony is scientifically valid; and that it is capable of empirical testing and can properly be applied to the facts in issue."

[56] Rule 702 provides: If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine if fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

[57] Sales, B.D. et al. (1994), "In a dim light: Admissibility of child sexual abuse memories," Applied Cognitve Psychology, 8:399.

[58] See, e.g., 12 Okl. St. at 95. A reference is made in L.C., supra, to the Oklahoma statute.

[59] The full text of the interview is included in the Appendix.

[60] Pope (1994).

[61] Loftus (1992).